Bill would create joint legal custody presumption

Legislation draws ire of State Bar’s Family Law Section

A bill touted as protecting a child’s relationship with both parents has drawn opposition from the State Bar of Michigan’s Family Law Section.

House Bill 4691, sponsored by Rep. Jim Runestad, R-White Lake Township, would change the name of the Child Custody Act to the Michigan Shared Parenting Act. It would create a presumption of joint legal custody and substantially equal parenting time.
The legislation would require a preponderance of evidence to “rebut a presumption of established custodial environment or to demonstrate why joint legal custody or substantially equal parenting time should not be granted,” according to a legislative analysis of the bill by the House Fiscal Agency.

David Helm, a family law lawyer in Plymouth, spoke in favor of the bill at a June 6 House Judiciary Committee meeting and explained its contents to lawmakers. He sat on a committee that examined the Child Custody Act and gathered input.

“We heard from many family counselors and therapists and psychologists and they all said the same thing that, across all demographics, substantially equal parenting time allows a child to be happier, healthier, more well adjusted and more stable,” he said.

But the SBM Family Law Section expressed opposition to the bill, stating that it “extensively rewrites the Child Custody Act, creating new language and concepts that are ill-defined and will require years of litigation to clarify.”

The House committee approved the bill June 20 and sent it to the full House for consideration. Further action is unlikely until fall after various groups continue to provide input on the measure during the summer recess.

Push toward equal time
The act currently requires that parents in custody disputes be advised by the court of joint custody. If the legislation becomes law, the court would be required to advise parents of the presumption of joint legal custody and substantially equal parenting time.

Domestic violence, child abuse and child neglect are among the factors that could be cited by a parent, with evidence, to combat the equal parenting time requirement.

The bill also states that “predominant weight must be given to a child’s preference after he or she turns 16 years of age.”

The current standard prohibits parents whose custody is governed by court order from changing a legal residence to more than 100 miles from the other parent. The legislation would change that standard to 80 miles.

Helm said the Child Custody Act has “grown into a law that encourages parties to fight and doesn’t necessarily start them off on equal footing.”

He added that there has been an increased reliance on Friend of the Court, with a norm of granting sole physical custody to one parent while the other receives one day a week and every other weekend.

“It starts the parties on unequal footing and that’s the problem,” Helm said.

Despite the presumption featured in the bill, agreements still could be reached between the two sides, but the court could determine that an arrangement is not in the child’s best interests.

“The parties can always agree differently. The parties can always do what they feel is in their own and the child’s own best interests despite this presumption,” Helm said.

The history of the parties’ conduct would be examined as well as their capacity in the future when evaluating the child’s best interests, Helm said. Each party must maintain “regular and ongoing contact” with the child for the presumption to be created. Sole custody could be awarded to one side if the court determines the parties can’t get along.

Concerns
The Family Law Section expressed concern that parents who are unable to prove allegations of domestic violence, abuse or neglect will be at risk of losing their share of custody.

“Like previous versions of this bill, the proposal favors bad parents at the expense of children and good parents,” according to the section.

The section urged lawmakers to “work with the interested parties to craft a solution that does more than address a few disgruntled advocates but in fact creates a law that serves the best interests of all Michigan families.”

Family law attorney John F. Schaefer said in a statement that the legislation paints “a Norman Rockwell picture of divorce that is not supported by reality.”

“This bill presupposes that every child has two loving parents willing to dedicate themselves to raising their children in a loving environment,” he said. “It also presupposes those parents are able to get along well enough to do so. Most people divorce because they can’t get along and concur on parenting issues. There are also very serious emotional implications to having very young children splitting time in different households.”

To promote increasing the time that parents spend with children, the relationship between parenting time and money should be eliminated, said Schaefer, who has offices in Birmingham, Grosse Pointe Farms and Harbor Springs.

“Currently in Michigan, the number of overnights a father has very much drives the amount of child support he pays,” he said.

Schaefer said the legislation “discourages mothers from encouraging their children to spend time with their father as it diminishes support.”

“It has also bred fathers who may not be truly interested in spending time with their children to seek overnight visitation to avoid paying higher child support. Parents should be encouraged to have their children spend time with both parents without a financial penalty or reward linked to it.”

If you would like to comment on this story, email Lee Dryden at ldryden@mi.lawyersweekly.com.